United States District Court, N.D. Florida, Gainesville Division
PHILLIP A. SAMS III, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE
a Social Security case referred to the undersigned upon
consent of the parties, ECF No. 8, by District Judge Mark E.
Walker, ECF No. 9, and before the Court pursuant to 42 U.S.C.
§ 405(g) for review of the final determination of the
Acting Commissioner (Commissioner) of the Social Security
Administration (SSA) denying Plaintiff's application for
a period of disability and Disability Income Benefits (DIB)
filed pursuant to Title II of the Act. For the reasons set
forth herein, the decision of the Commissioner is reversed
August 14, 2013, Plaintiff, Phillip A. Sams III, filed an
application for DIB, alleging disability beginning August 14,
2013, based on a stroke in 2012; depression; hyperthyroid;
heart disease; anxiety; migraines and bad headaches; blurred
vision; back injury; fainting spells/dizziness; chest pains;
and weakness on left side. Tr. 33, 171-72, 186-87,
Plaintiff meets the insured status requirements for DIB
through March 31, 2017. Tr. 33, 195.
application was denied initially on October 15, 2013, and
upon reconsideration on January 15, 2014. Tr. 33, 77-121. On
January 20, 2014, Plaintiff requested a hearing. Tr. 33,
122-23. On December 31, 2015, Plaintiff's representative
(Andrew S. Youngman, a non-attorney) filed a pre-hearing
memorandum. Tr. 268-76. On January 7, 2016, Administrative
Law Judge (ALJ) Gregory J. Froehlich, presided over a video
hearing from Jacksonville, Florida, and Plaintiff appeared in
Gainesville, Florida, represented by L. Lynn Lawrence, an
attorney, and appointed co-representative from the same firm.
Tr. 33, 49, 51, 113-14, 166-70. (Mr. Youngman, a
non-attorney, also represented Plaintiff on post-hearing
matters. Tr. 27, 33, 113-14, 166-70, 278-86.) Plaintiff
testified during the hearing. Tr. 52-68. Donna P. Mancini, an
impartial vocational expert, also testified. Tr. 33, 69-73,
provided the vocational expert with a hypothetical set of
facts. Tr. 70. Based on those facts, the vocational expert
testified that Plaintiff would not be able to perform his
past work, classified in the Dictionary of Occupational
Titles (DOT) as automobile mechanic, medium exertion with a
SVP rating of 6 (skilled) and performed by Plaintiff at the
heavy exertional level. Tr. 69-70; see infra at n.2.
The vocational expert testified that sedentary work would be
available and would include positions such as a document
preparer, DOT number 241.587-018, addresser, DOT number
209.587-010, and cutter and paster, DOT number 249.587-014,
with each job classified as unskilled with an SVP of 2. Tr.
70-71. Conversely, the vocational expert opined in response
to a second hypothetical that Plaintiff would not be able to
perform competitive employment if he would be off task 20%
during the workday and outside of the normally permitted
breaks. Tr. 71. The ALJ asked the vocational expert if there
are any conflicts between her testimony and the DOT and she
A The only conflict, Your Honor, is, and it's not really
a conflict, is that the DOT does not address the sit/stand
option and I can testify to that aspect because I've
worked in the field, met with employers, discuss with them
those issues, and then the testimony is recalled from those
Tr. 71. Plaintiff's counsel then inquired of the
Q Okay. What part of the file did you review to determine the
-- his job classifications and -- for this position, for
A Okay. I don't have any exhibit number. Is [sic] is the
Disability Report, Adult Form, SSA-2368, and specifically the
information that's contained on page 4 of
Q Okay. And when you say, for instance, on the document
preparer that there is 48, 353 jobs, where are you obtaining
that number from?
A Under a program called a Job Browser Pro by SkillTRAN. What
SkillTRAN does, it extracts the information from the
Department of Labor, Bureau of Labor Statistics in a computer
program and identifies DOT numbers with specific numbers of
positions in the state and national economy.
Q And the DOT hasn't been updated since, like, 1992; is
A The DOT -- yes, the information in the update is -- is old.
That is correct.
ATTY: Okay. Your Honor, one, I'd like to raise the
objection that the way that the numbers are being prepared is
unclear and can't -- is being related back into old DOT
ALJ: Okay. That objection's [sic] overruled. Thank you.
Tr. 72 (emphasis supplied). The vocational expert further
testified that the positions of document preparer, cutter and
paster, and addresser that require fingering, (occasional
and/or frequent), would not be available to such a person,
and “with no fingering, those three positions would be
eliminated.” Tr. 73. The ALJ left the record open for
15 days to obtain additional medical records. Tr. 73-74.
January 26, 2016, Mr. Youngman, representing Plaintiff, filed
a lengthy post-hearing memorandum expanding on the objection
to the vocational expert's testimony and explaining the
bases on which Plaintiff alleged the testimony was
unreliable. Tr. 278-332. Mr. Youngman objected to the
vocational expert testimony, arguing that it was based on
outdated information and should have been based on the
Department of Labor's current source for evaluating job
requirements found at the United States Department of Labor
(USDOL) “O*NET” website rather than on the DOT
job descriptions and skill level. Tr. 280-81.
March 7, 2016, the ALJ issued a decision and denied
Plaintiff's application for benefits, concluding that
Plaintiff was not disabled from August 14, 2013, through the
date of the decision. Tr. 41. The ALJ did not rule on the
post-hearing objections or more specifically explain why the
objection raised to the vocational expert's testimony at
the hearing was overruled.
2, 2016, Plaintiff's representative, Mr. Youngman,
requested review of the ALJ's decision by the Appeals
Council and filed a brief dated May 12, 2016, and Medical
Source Statement's (MSS) from Innocent Odocha, M.D., and
Brent Stuart, M.D., both dated August 19, 2016. Tr. 2, 5-6,
27-28, 333-38 (Exhibit 22E),  907-09 (Exhibit 31F), 910
(Exhibit 32F). Plaintiff's representative also submitted
an MSS from Sarah Bolis, M.D., from UF Health dated November
9, 2016, Tr. 8 (Bolis), 13 (Bolis), 19 (Bolis), and records
related to a Workers' Compensation claim dated November
1, 2016, Tr. 10-16.
December 7, 2016, the Appeals Council denied Plaintiff's
request for review of the ALJ's decision making the
ALJ's decision the final decision of the Commissioner.
Tr. 1-7; see 20 C.F.R. § 404.981. The Appeals
Council noted that it had considered the one-page MSS from
Dr. Bolis dated August 19, 2016, and the medical records (10
pages) from UF Health dated November 9, 2016, and stated:
“The [ALJ] decided your case through March 7, 2016.
This new information is about a later time. Therefore, does
not affect the decision about whether you were disabled
beginning on or before March 7, 2016.” Tr. 2;
see Tr. 5-6.
November 10, 2016, Plaintiff, represented by different
counsel, filed a Complaint in this Court seeking review of
the ALJ's decision. ECF No. 1. The parties filed
memoranda of law, ECF Nos. 18 and 19, which have been
Findings of the ALJ
ALJ made several findings:
1. “The claimant has not engaged in substantial gainful
activity since August 14, 2013, the alleged onset
date.” Tr. 35.
2. “The claimant has the following severe impairments:
left shoulder osteoarthritis; degenerative disk disease of
the cervical and lumbar spine, status post ACDF; coronary
artery disease; RSD in the right upper extremity; bilateral
median nerve entrapment; anxiety; and depression.”
Id. The ALJ determined that Plaintiff's history
of TIA and thyroid issues are non-severe. Id.
3. “The claimant does not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1.” Tr. 36. The ALJ also considered
the four broad functional areas known as the “paragraph
B” criteria and determined that Plaintiff had
moderate limitations in activities of daily living;
mild limitation in maintaining social functioning;
moderate limitations in maintaining concentration,
persistence, and/or pace; and no episodes of
decompensation, of extended duration. Id.
4. “[T]he claimant has the residual functional capacity
[RFC] to perform less than a full range of sedentary work as
defined in 20 CFR 404.1567(a) and needs a 30-minute sit/stand
option. The claimant can occasionally climb ramps and stairs
but never ladders, ropes, or scaffolds. He can occasionally
balance but never can kneel, crouch, or crawl. The claimant
is precluded from bilateral overhead reaching and cannot
handle/finger more than frequently with the right hand. The
claimant cannot use his upper extremities for repetitive
movements. The claimant cannot work around moving, mechanical
parts or at unprotected heights. Additionally, the claimant
is limited to performing simple tasks with little variation
that take a short period of time to learn (up to and
including 30 days). He can tolerate changes in a routine work
setting. The claimant is limited to occasional contact with
the general public.” Tr. 37.
5. “The claimant is unable to perform any past relevant
work” as an automobile mechanic, medium exertion, with
an SVP rating of 6. Tr. 40.
6. The Plaintiff was 38 years old, which is defined as a
younger individual age 18-44, on the alleged disability onset
date. Id. Plaintiff “has at least a high
school education and is able to communicate in
7. “Considering the claimant's age, education, work
experience, and [RFC], there are jobs that exist in
significant numbers in the national economy that the claimant
can perform.” Tr. 41. The vocational expert testified
that Plaintiff would be able to perform the requirements of
representative occupations such as document preparer,
addresser, and cutter and paster, each with a sedentary
exertion level and an SVP of 2 (unskilled). Tr. 41;
see Tr. 70-71.
The vocational expert also testified these positions would be
eliminated if a person was unable to have any fine
manipulation skills, including fingering. See Tr.
8. “The claimant has not been under a disability, as
defined in the Social Security Act, from August 14, 2013,
through the date of [the] decision.” Tr. 41.
Legal Standards Guiding Judicial Review
Court must determine whether the Commissioner's decision
is supported by substantial evidence in the record and
premised upon correct legal principles. 42 U.S.C. §
405(g); Chester v. Bowen, 792 F.2d 129, 131 (11th
Cir. 1986). “Substantial evidence is more than a
scintilla, but less than a preponderance. It is such relevant
evidence as a reasonable person would accept as adequate to
support a conclusion.” Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted);
accord Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005). “The Commissioner's factual findings
are conclusive if supported by substantial evidence.”
Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.
2002) (citations omitted). The Court may not reweigh the
evidence or substitute its own judgment for that of the ALJ
even if it finds that the evidence preponderates against the
ALJ's decision. Moore, 405 F.3d at
making an initial determination of disability, the examiner
must consider four factors: ‘(1) objective medical
facts or clinical findings; (2) diagnoses of examining
physicians; (3) subjective evidence of pain and disability as
testified to by the claimant and corroborated by [other
observers, including family members], and (4) the
claimant's age, education, and work history.'”
Bloodsworth, 703 F.2d at 1240 (citations omitted). A
disability is defined as a physical or mental impairment of
such severity that the claimant is not only unable to do past
relevant work, “but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national
economy.” 42 U.S.C. § 423(d)(2)(A). A disability
is an “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A); 20 C.F.R. § 404.1509 (duration
requirement). Both the “impairment” and the
“inability” must be expected to last not less
than 12 months. Barnhart v. Walton, 535 U.S. 212
(2002). In addition, an individual is entitled to DIB if he
is under a disability prior to the expiration of his insured
status. See 42 U.S.C. § 423(a)(1)(A); Moore
v. Barnhart, 405 F.3d at 1211; Torres v. Sec'y
of Health & Human Servs., 845 F.2d 1136, 1137-38 (1
st Cir. 1988); Cruz Rivera v. Sec'y of Health &
Human Servs., 818 F.2d 96, 97 (1st Cir. 1986).
Commissioner analyzes a claim in five steps, pursuant to 20
C.F.R. § 404.1520(a)(4)(i)-(v):
1. Is the individual currently engaged in substantial gainful
2. Does the individual have any severe impairments?
3. Does the individual have any severe impairments that meet
or equal those listed in Appendix 1 of 20 C.F.R. ...